LAYTON — The family of two Layton girls who died just days after a fumigant was placed around their home has filed a wrongful death complaint in 2nd District Court.
Rebecca Kay Toone, 4, and her sister, Rachel Ana Toone, 15 months, died in February 2010. Authorities believe the Toone girls might have inhaled phosphine fumes emitted from tablets of Fumitoxin, a rat poison, as the Utah Medical Examiner's Office reported that the girls had elevated levels of phosphorus in their bodies.
The girls' deaths came after Coleman Nocks, an exterminator for Bugman Pest and Lawn Inc., allegedly applied Fumitoxin pellets around the family's home in a manner "inconsistent with labeling."
In the complaint filed Monday, the family names the Bountiful-based pest control company, Nocks, Bugman owners Raymond Wilson Sr. and Raymond Wilson Jr., and five unidentified individuals "who may have sold, provided, distributed or otherwise allowed the other named defendants to possess, acquire, use or apply pesticides … or may have held either an ownership of controlling interest in Bugman."
They call for damages to compensate for the negligence, infliction of emotional distress, nuisance and "abnormally dangerous activities" they believe were committed by Bugman and Nocks.
The girls' parents, Brenda and Nathan Toone, outline the various injuries sustained by their family members, in addition to the deaths of their two youngest children.
"Nathan Toone experienced nausea, vomiting and headache and required medical examination and treatment," the complaint states. "Cassidy Dawn Toone, plaintiff's 9-year-old child, suffered hypotension, vomiting, abdominal pain, headache, fatigue and coughing."
The couple's 7-year-old son, Braden, experienced similar symptoms.
"The Toone family intends to see that those responsible for this tragedy are held fully accountable, both within the criminal and civil justice system," the family's attorney, Peter Summerill, said. "The Toone family continues to have confidence in this country's legal system and will support the efforts of the government officials responsible for prosecuting criminal cases while also pursuing a civil claim through their own attorneys."
Nocks was charged in 2nd District Court with negligent homicide, a class A misdemeanor, in April 2010. He pleaded not guilty and his case was pending when both Bugman and Nocks were named in a federal indictment charging them both with three counts of unlawful use of a registered pesticide. Charges will be pursued in federal court.
At their first federal court appearance, Raymond Wilson Sr. said the cause of the girls' deaths was "up for debate" and suggested carbon monoxide may have played a part.
Wilson said emergency responders went to the home and cleared it for carbon monoxide. He said Fumitoxin has a distinctive smell that would have been noticed.
But Dennis Keith, who is the bureau manager over emergency response and waste management with the Davis County Health Department, told the Deseret News responders were able to rule out any carbon monoxide risk. He said the girls' mother noticed the odd smell and tried calling the pesticide company.
Keith's timeline said the mother even placed a phone call to the pest control company to inquire about the fumigant and left a message without getting a reply.
After emergency responders were told a fumigant had been applied near the home, they asked Nocks to return to the home and bring them an invoice detailing what he used.
A civil support team saw the invoice, tested for phosphine gas and confirmed it was present.
Bugman Pest and Lawn Inc. could not be reached for comment Thursday.